TMI Blog2005 (10) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... hat he belongs to the Konda Dora tribe, was not true. Since he was ineligible to contest from the constituency, his election was liable to be declared void and set aside. The first respondent also prayed that he may be declared elected instead. 2. The appellant resisted the election petition. He pleaded that he belongs to the Konda Dora tribe which was a notified Scheduled Tribe. He was neither a 'Kondaraju' nor a 'Kshatriya'. Even otherwise, 'Kondaraju' and Konda Dora were synonymous and the Konda Dora tribe was included in the list of Scheduled Tribes. He further pleaded that his earlier election from No.8 Naguru (ST) assembly constituency, the self-same constituency, was challenged by a voter in Election Petition No. 13 of 1983 on the very same ground that he did not belong to the Konda Dora tribe. That election petition, after contest, was dismissed by the learned Judge to whom it was assigned after a regular trial and the said decision barred a fresh enquiry into the same question in the present election petition and the decision therein was conclusive on his status. He also explained that his ancestors and himself described themselves as & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that may be adduced in it. This order of the learned Judge was challenged before this Court in SLP (C) Nos. 1438-1439 of 2003. This Court, by order dated 7.2.2003, dismissed those petitions for special leave. Thereafter, evidence was taken in the election petition. Documents were marked on the side of the parties and oral evidence was led. The learned Judge, on an appreciation of the pleadings and the evidence in the case, came to the conclusion that the appellant did not belong to Konda Dora community, a Scheduled Tribe and was consequently ineligible to contest the election from a constituency reserved for the scheduled tribes. Thus, the learned Judge set aside the election of the appellant from No.8 Naguru (ST) assembly constituency in the general elections held on 11.9.1999. The prayer of the first respondent to declare him elected, was declined on the ground that such relief was not liable to be granted at that point of time and in view of the dissolution of the assembly itself. Feeling aggrieved by the setting aside of his election on the ground that he did not belong to a scheduled tribe, the appellant has filed this appeal under Section 116-A of the Representation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suffers from innumerable infirmities and required to be set aside by this Court in appeal. 5. Learned counsel for the first respondent, on the other hand, contended that it has been found by the order dated 13.12.2002, that the decision in E.P. 13 of 1983 did not operate as res judicata and was not conclusive on the tribal status of the appellant and that the certificate obtained under the State Act was not conclusive on the election tribunal and that those findings have become final and have been approved by this Court by dismissing the petitions for special leave to appeal filed by the appellant challenging that order. He submitted that it was not open to the appellant to raise those questions all over again in this appeal. Even otherwise, the finding in E.P. 13 of 1983 was only to the effect that the election petitioner therein, had failed to prove that the appellant did not belong to a scheduled tribe or that he belonged to the 'Kshatriya' caste and that did not amount to a declaration of the status of the appellant as belonging to the Konda Dora tribe. He submitted that every election furnishes a fresh cause of action and the finding in an election petition relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... school leaving certificate. It was thus held that the election petitioner therein, had not chosen to lead any evidence worth the name to show that the appellant was a 'Kshatriya' and he had only tried to pick holes in the evidence adduced on the side of the appellant. In the light of the evidence on the side of the appellant, it had to be held that the appellant belonged to the Konda Dora tribe and that his nomination was rightly accepted. 7. Before proceeding to consider this question, it requires to be noticed that at the instance of the appellant, the learned Judge had held by his order dated 13.12.2002, that the adjudication in E.P. 13 of 1983 did not operate as res judicata and was not conclusive on the question of the status of the appellant. That order had been challenged before this Court in Petitions For Special Leave To Appeal (Civil) Nos. 1438-1439 of 2003. Though, this Court had not given reasons, this Court had dismissed those Petitions for Special Leave to Appeal by order dated 7.2.2003 without granting liberty to the appellant to challenge the findings while challenging the final decision, if it became necessary. Whether there be a merger of the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also raised the plea that the appellant did not belong to the Konda Dora community. An election petition filed, though it abates on the death of the petitioner therein, could be pursued by another person coming forward to prosecute that election petition as enjoined by Section 112 of the Act. But that does not make an election petition a representative action in the sense in which it is understood in law. Therefore, normally, the adjudication in an election petition, not inter-parties, cannot operate as res judicata in a subsequent election petition challenging that subsequent election. 9. The appellant could have invoked explanation VI to Section 11 of the Code of Civil Procedure if it were possible to hold that the person who was the petitioner in E.P. 13 of 1983, was litigating in respect of a public right or of a private right claimed in common for himself and others and he was also bona fide litigating therein. Though, as noticed earlier, Section 112 of the Representation of the People Act gives any other voter the right to come forward and pursue E.P. 13 of 1983, the prior election petition, in case the petitioner therein died and the election petition abated, on that ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to a caste or community, that was not included in the Scheduled Tribes Order. In a case where the election petitioner failed to establish his claim, it could not be said that it amounted to a declaration of the status of the respondent in that election petition, the successful candidate and that such a finding on status would operate as a judgment in rem so as to bind the whole world. It is also not one of the judgments specifically recognized by Section 41 of the Evidence Act. It has been held that the challenge to an election is only a statutory right. An election petition is not a suit of a general nature or a representative action for adjudication of the status of a person. Even if we take it that the earlier judgment is admissible in the evidence, on that, no objection was raised even at the trial, it could be brought in under Section 42 of the Evidence Act on the basis that it relates to a matter of a public nature or under Section 43 of the Evidence Act. In either case, not being inter-parties, the best status that can be assigned to it is to say that it is of high evidentiary value, while considering the case of the parties in the present election petition. 11. In fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the election petitioner herein, even though he was not a party to the earlier proceeding. 13. The argument that the earlier decision must be treated to be a judicial precedent cannot also be accepted. The decision in the earlier election petition depended upon the pleadings and the evidence adduced in that case and their appreciation. The essential finding was that the election petitioner therein had not established the plea set up by him. It was not a case where a particular document was interpreted in a particular manner by the highest court of the land and the interpretation of the same document was again involved in a subsequent litigation between those who were not parties to the earlier litigation. In Kharkan and others vs. State of Uttar Pradesh (AIR 1965 SC 83) this Court held that an earlier judgment can only be relevant if it fulfills the conditions laid down by the Indian Evidence Act in Sections 40 to 43. The earlier judgment is, no doubt, admissible to show the parties and the decision but it is not admissible for the purpose of relying upon the appreciation of the evidence. What happened in E.P. 13 of 1983was that the documentary and oral evidence adduced in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong by the appellant, it must be held that the election petitioner had established that the appellant did not belong to a Scheduled Tribe. The learned Judge, therefore, allowed the election petition and declared the election of the appellant from the concerned constituency, void. 15. Learned senior counsel for the appellant made a strenuous attempt to contend that the learned Judge of the High Court had wrongly placed the burden of proof in the case. We cannot agree. The trial judge has rightly proceeded on the basis that the initial burden was on the election petitioner to establish his plea that the appellant did not belong to a Scheduled Tribe. Though in a prior statement, an assertion in one's own interest, may not be evidence, a prior statement, adverse to one's interest would be evidence. In fact, it would be the best evidence the opposite party can rely upon. Therefore, in the present case, where the appellant is pleading that he is a Konda Dora, the statement in the series of documents, pre-constitution and post constitution, executed by his ancestors and members of his family including himself describing themselves as 'Kshatriyas', would operate as admis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al relied by the appellant to show that he belonged to the 'Konda Raju' tribe, also showed that the tribe 'Konda Raju' was different from the tribe 'Konda Dora'. In paragraphs 84 and 85 of his judgment the trial judge has dealt with this aspect. On going through the detailed discussion therein and the materials read out to us by leaned counsel for the appellant, it is not possible to hold that these documents establish that the appellant belonged to the 'Konda Dora' tribe. 18. As against the admissions contained in Exhibits A2 to A11 and the evidence furnished by the other documents produced on behalf of the election petitioner, no positive evidence could be adduced by the appellant to show that he belonged to the Konda Dora Tribe. He relied on a caste certificate issued to him under the Andhra Pradesh (Scheduled Castes Scheduled Tribe and Backward Classes) Regulation of Issue of Community Certificate Act, 1993 in support of his claim. The trial judge found that there was no due enquiry on the application of the appellant for the issue of a caste certificate as prescribed under this Act, and the certificate was issued to him based on a recommendat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... family of the appellant originally was tribal. Evidence in the case on hand also indicates that the family of the appellant had marital relationship mostly with the Zamindar families outside the present State of Andhra Pradesh and their way of life was also not that of the tribals. No positive acceptable evidence could also be adduced to show that the family entered into marital relationship with 'Konda Dora' tribals. The evidence also shows that the family of the appellant did not have any close relationship with the Konda Doras of the locality. The admissions of RW.1 show that quite a few of the customs the family was following had no relations to the customs generally followed by the Konda Dora Tribe and some of the practices clearly differed from that of the tribe and was more consistent with the practices followed by Kshatriya and higher castes. The trial judge has carefully analysed these aspects and we do not see any justification in differing from his appreciation of the oral as well as documentary evidence in the case. 20. In a sense, the appellant wants the best of two worlds. Though, he would like to contest from a constituency reserved for the Scheduled Tribe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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